Texas 2023 - 88th Regular

Texas House Bill HB1105 Compare Versions

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1	1	By: Price, et al. (Senate Sponsor - Kolkhorst) H.B. No. 1105
2	2	(In the Senate - Received from the House May 8, 2023;
3	3	May 11, 2023, read first time and referred to Committee on Health &
4	4	Human Services; May 21, 2023, reported adversely, with favorable
5	5	Committee Substitute by the following vote: Yeas 7, Nays 2;
6	6	May 21, 2023, sent to printer.)
7	7	Click here to see the committee vote
8	8	COMMITTEE SUBSTITUTE FOR H.B. No. 1105 By: Kolkhorst
9	9
10	10
11	11	A BILL TO BE ENTITLED
12	12	AN ACT
13	13	relating to preventative health care and public health, including
14	14	prohibited immunization and face-covering requirements, private
15	15	business or school closures, and the ordering and administration of
16	16	immunizations by a pharmacist.
17	17	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
18	18	SECTION 1. Section 38.001, Education Code, is amended by
19	19	amending Subsections (a) and (b-1) and adding Subsection (b-2) to
20	20	read as follows:
21	21	(a) Except as provided by Subsection (c), each [Each]
22	22	student shall be fully immunized against the diseases listed in
23	23	Section 161.004, Health and Safety Code [diphtheria, rubeola,
24	24	rubella, mumps, tetanus, and poliomyelitis, except as provided by
25	25	Subsection (c)].
26	26	(b-1) Each year, the Department of State Health Services
27	27	shall prepare a list of the immunizations required [under this
28	28	section] for admission to public schools [and of any additional
29	29	immunizations the department recommends for school-age children].
30	30	The department shall prepare the list in English and Spanish and
31	31	make the list available in a manner that permits a school district
32	32	to easily post the list on the district's Internet website as
33	33	required by Section 38.019.
34	34	(b-2) An elementary or secondary school may not require a
35	35	student, as a condition of the student's admission to or continued
36	36	enrollment in the school, to be vaccinated against the 2019 novel
37	37	coronavirus disease (COVID-19).
38	38	SECTION 2. Section 38.019(a), Education Code, is amended to
39	39	read as follows:
40	40	(a) A school district that maintains an Internet website
41	41	shall post prominently on the website:
42	42	(1) a list, in English and Spanish, of:
43	43	(A) the immunizations required for admission to
44	44	public school in accordance with [by rules of the Department of
45	45	State Health Services adopted under] Section 38.001; and
46	46	(B) [any immunizations or vaccines recommended
47	47	for public school students by the Department of State Health
48	48	Services; and
49	49	[(C)] health clinics in the district that offer
50	50	the influenza vaccine, to the extent those clinics are known to the
51	51	district; and
52	52	(2) a link to the page on the Department of State
53	53	Health Services Internet website that provides [where a person may
54	54	obtain] information relating to the procedures for claiming an
55	55	exemption from the immunization requirements of Section 38.001.
56	56	SECTION 3. Subchapter Z, Chapter 51, Education Code, is
57	57	amended by adding Section 51.91921 to read as follows:
58	58	Sec. 51.91921. PROHIBITION ON PRIVATE OR INDEPENDENT
59	59	INSTITUTIONS OF HIGHER EDUCATION MANDATING COVID-19 VACCINATION
60	60	FOR STUDENTS. (a) In this section:
61	61	(1) "COVID-19" means the 2019 novel coronavirus
62	62	disease, including any variant.
63	63	(2) "Private or independent institution of higher
64	64	education" has the meaning assigned by Section 61.003.
65	65	(b) A private or independent institution of higher
66	66	education may not require a student, as a condition of the student's
67	67	admission to or continued enrollment in the institution, to be
68	68	vaccinated against COVID-19.
69	69	SECTION 4. Section 51.933, Education Code, is amended by
70	70	amending Subsections (b) and (b-1) and adding Subsection (b-2) to
71	71	read as follows:
72	72	(b) The executive commissioner of the Health and Human
73	73	Services Commission may require a student at an institution of
74	74	higher education who is pursuing a course of study in a human or
75	75	animal health profession to be immunized [immunizations] against
76	76	the diseases listed in Subsection (a) and against hepatitis B,
77	77	measles, rabies, and varicella, as applicable. The [additional
78	78	diseases for students at any institution of higher education who
79	79	are pursuing a course of study in a human or animal health
80	80	profession, and the] executive commissioner may require those
81	81	immunizations for any students in times of an emergency or epidemic
82	82	in a county where the commissioner of state health services has
83	83	declared such an emergency or epidemic.
84	84	(b-1) A requirement [rule adopted] under Subsection (b) for
85	85	[that requires] a student to be immunized against hepatitis B
86	86	[vaccination for students] may apply only to students enrolled in a
87	87	course of study that involves potential exposure to human or animal
88	88	blood or bodily fluids.
89	89	(b-2) An institution of higher education may not require a
90	90	student, as a condition of the student's admission to or continued
91	91	enrollment in the institution, to be vaccinated against COVID-19 as
92	92	defined by Section 51.91921.
93	93	SECTION 5. Sections 81.023(a) and (c), Health and Safety
94	94	Code, are amended to read as follows:
95	95	(a) The executive commissioner may recommend to the
96	96	legislature immunizations to include on the list of immunizations
97	97	required [department shall develop immunization requirements] for
98	98	children under Section 161.004.
99	99	(c) The department shall cooperate with the State Board of
100	100	Education in [formulating and] implementing immunization
101	101	requirements for students admitted to public or private primary or
102	102	secondary schools.
103	103	SECTION 6. Subtitle D, Title 2, Health and Safety Code, is
104	104	amended by adding Chapter 81B to read as follows:
105	105	CHAPTER 81B. PROHIBITED CORONAVIRUS PREVENTATIVE MEASURES
106	106	Sec. 81B.001. DEFINITIONS. In this chapter:
107	107	(1) "COVID-19" means the 2019 novel coronavirus
108	108	disease and any variants of the disease.
109	109	(2) "Governmental entity" means this state, a local
110	110	government entity as defined by Section 418.004, Government Code,
111	111	or an agency of this state or a local government entity.
112	112	Sec. 81B.002. PROHIBITED FACE-COVERING MANDATE.
113	113	Notwithstanding any other law, including Chapter 81 of this code
114	114	and Chapter 418, Government Code, a governmental entity may not
115	115	implement, order, or otherwise impose a mandate requiring a person
116	116	to wear a face mask or other face covering to prevent the spread of
117	117	COVID-19.
118	118	Sec. 81B.003. PROHIBITED VACCINE MANDATE. Notwithstanding
119	119	any other law, including Chapter 81 of this code and Chapter 418,
120	120	Government Code, a governmental entity may not implement, order, or
121	121	otherwise impose a mandate requiring a person to be vaccinated
122	122	against COVID-19.
123	123	Sec. 81B.004. PROHIBITED CLOSURE MANDATE FOR PRIVATE
124	124	BUSINESSES AND SCHOOLS. Notwithstanding any other law, including
125	125	Chapter 81 of this code and Chapter 418, Government Code, a
126	126	governmental entity may not implement, order, or otherwise impose a
127	127	mandate requiring the closure of a private business, public school,
128	128	open-enrollment charter school, or private school to prevent the
129	129	spread of COVID-19.
130	130	SECTION 7. Section 161.004(a), Health and Safety Code, is
131	131	amended to read as follows:
132	132	(a) Every child in the state shall be immunized against
133	133	diphtheria, hepatitis A, hepatitis B, measles, meningococcal
134	134	disease, mumps, pertussis, polio, rubella, tetanus, and varicella
135	135	[vaccine preventable diseases caused by infectious agents] in
136	136	accordance with the [immunization] schedule prescribed [adopted]
137	137	in department rules. The executive commissioner may not require
138	138	immunizations against any additional diseases for students
139	139	admitted to a public or private primary or secondary school.
140	140	SECTION 8. Subtitle H, Title 2, Health and Safety Code, is
141	141	amended by adding Chapter 174 to read as follows:
142	142	CHAPTER 174. PATIENT RIGHTS
143	143	Sec. 174.001. DEFINITIONS. In this chapter:
144	144	(1) "COVID-19" has the meaning assigned by Section
145	145	81B.001.
146	146	(2) "Health care facility" means a hospital,
147	147	freestanding emergency medical care facility, urgent care or retail
148	148	clinic, outpatient clinic, birthing center, ambulatory surgical
149	149	center, or other facility that is licensed to provide health care
150	150	services in this state.
151	151	Sec. 174.002. PROHIBITED DISCRIMINATION BASED ON COVID-19
152	152	VACCINATION STATUS. (a) Except as provided by Subsection (b), a
153	153	health care facility may not refuse to provide health care services
154	154	to an individual based on the individual's vaccination status or
155	155	post-transmission recovery of COVID-19.
156	156	(b) The prohibition under Subsection (a) does not apply to a
157	157	hospital that requires a COVID-19 vaccination in relation to
158	158	oncology or transplant care.
159	159	Sec. 174.003. MEDICAID REIMBURSEMENT PROHIBITED. (a) The
160	160	commission:
161	161	(1) may not provide Medicaid reimbursement to a health
162	162	care facility that violates this chapter; and
163	163	(2) shall disenroll the facility from participation as
164	164	a Medicaid provider.
165	165	(b) The executive commissioner may adopt rules as necessary
166	166	to implement this section.
167	167	SECTION 9. Chapter 21, Labor Code, is amended by adding
168	168	Subchapter H-1 to read as follows:
169	169	SUBCHAPTER H-1. DISCRIMINATION BASED ON COVID-19 VACCINATION
170	170	STATUS
171	171	Sec. 21.421. DEFINITION. In this subchapter, "COVID-19"
172	172	has the meaning assigned by Section 81B.001, Health and Safety
173	173	Code.
174	174	Sec. 21.422. PROHIBITED DISCRIMINATION BASED ON COVID-19
175	175	VACCINATION STATUS. (a) Except as provided by Subsection (d), an
176	176	employer commits an unlawful employment practice if the employer
177	177	fails or refuses to hire, discharges, or otherwise discriminates
178	178	against an individual with respect to the compensation or the
179	179	terms, conditions, or privileges of employment because the
180	180	individual has not been vaccinated against COVID-19.
181	181	(b) A labor organization commits an unlawful employment
182	182	practice if the labor organization excludes or expels from
183	183	membership or otherwise discriminates against an individual
184	184	because the individual has not been vaccinated against COVID-19.
185	185	(c) An employment agency commits an unlawful employment
186	186	practice if the employment agency classifies or refers for
187	187	employment, fails or refuses to refer for employment, or otherwise
188	188	discriminates against an individual because the individual has not
189	189	been vaccinated against COVID-19.
190	190	(d) This section does not apply to:
191	191	(1) a health care facility, as defined by Section
192	192	224.001, Health and Safety Code, that:
193	193	(A) implements a policy or procedure to exempt
194	194	from a required vaccination an individual described by this section
195	195	who has a medical condition identified as a contraindication or
196	196	precaution to the vaccination by the Centers for Disease Control
197	197	and Prevention;
198	198	(B) establishes procedures that an exempt
199	199	individual is required to follow to protect facility patients from
200	200	exposure to disease, including the use of gloves, face masks, or
201	201	other protective medical equipment, based on the level of risk the
202	202	individual presents to patients by the individual's routine and
203	203	direct exposure to patients; and
204	204	(C) prohibits discrimination or retaliatory
205	205	action against an exempt individual, except that the required use
206	206	of protective medical equipment under Paragraph (B) is not
207	207	considered a retaliatory action for purposes of this paragraph; or
208	208	(2) a private employer that:
209	209	(A) implements a policy or procedure to exempt
210	210	from a required vaccination an individual described by this section
211	211	based on reasons of conscience or because the individual has a
212	212	medical condition identified as a contraindication or precaution to
213	213	the vaccination by the Centers for Disease Control and Prevention;
214	214	(B) establishes procedures that an exempt
215	215	individual is required to follow to protect employees and other
216	216	individuals from exposure to disease, including the use of gloves,
217	217	face masks, or other protective medical equipment, based on the
218	218	level of risk the individual presents to employees and other
219	219	individuals by the individual's routine and direct exposure to
220	220	employees and other individuals; and
221	221	(C) prohibits discrimination or retaliatory
222	222	action against an exempt individual, except that the required use
223	223	of protective medical equipment under Paragraph (B) is not
224	224	considered a retaliatory action for purposes of this paragraph.
225	225	SECTION 10. Section 551.003(33), Occupations Code, is
226	226	amended to read as follows:
227	227	(33) "Practice of pharmacy" means:
228	228	(A) providing an act or service necessary to
229	229	provide pharmaceutical care;
230	230	(B) interpreting or evaluating a prescription
231	231	drug order or medication order;
232	232	(C) participating in drug or device selection as
233	233	authorized by law, and participating in drug administration, drug
234	234	regimen review, or drug or drug-related research;
235	235	(D) providing patient counseling;
236	236	(E) being responsible for:
237	237	(i) dispensing a prescription drug order or
238	238	distributing a medication order;
239	239	(ii) compounding or labeling a drug or
240	240	device, other than labeling by a manufacturer, repackager, or
241	241	distributor of a nonprescription drug or commercially packaged
242	242	prescription drug or device;
243	243	(iii) properly and safely storing a drug or
244	244	device; or
245	245	(iv) maintaining proper records for a drug
246	246	or device;
247	247	(F) performing for a patient a specific act of
248	248	drug therapy management delegated to a pharmacist by a written
249	249	protocol from a physician licensed in this state in compliance with
250	250	Subtitle B; [or]
251	251	(G) subject to Section 554.052(c-1), ordering or
252	252	administering an immunization or vaccination to a patient who is at
253	253	least three years of age; or
254	254	(H) if the patient is younger than three years of
255	255	age and is referred to a pharmacist by a physician, administering an
256	256	immunization or vaccination to a patient under a physician's
257	257	written protocol.
258	258	SECTION 11. The heading to Section 554.004, Occupations
259	259	Code, is amended to read as follows:
260	260	Sec. 554.004. ADMINISTRATION OF MEDICATION; ORDERING AND
261	261	ADMINISTRATION OF IMMUNIZATION OR VACCINATION.
262	262	SECTION 12. Section 554.004(a), Occupations Code, is
263	263	amended to read as follows:
264	264	(a) The board shall specify conditions under which a
265	265	pharmacist may administer medication and order or administer [,
266	266	including] an immunization or [and] vaccination. The conditions
267	267	for ordering or administering an immunization or vaccination must
268	268	ensure that:
269	269	(1) [a licensed health care provider authorized to
270	270	administer the medication is not reasonably available to administer
271	271	the medication;
272	272	[(2) failure to administer the medication, other than
273	273	an immunization or vaccination, might result in a significant delay
274	274	or interruption of a critical phase of drug therapy;
275	275	[(3)] the pharmacist possesses the necessary skill,
276	276	education, and certification as specified by the board to order or
277	277	administer the immunization or vaccination [medication];
278	278	(2) [(4)] within a reasonable time after
279	279	administering an immunization or vaccination that is prescribed by
280	280	a licensed health care provider [medication], the pharmacist
281	281	notifies the licensed health care provider responsible for the
282	282	patient's care that the immunization or vaccination [medication]
283	283	was administered;
284	284	[(5) the pharmacist may not administer medication to a
285	285	patient at the patient's residence, except at a licensed nursing
286	286	home or hospital;
287	287	[(6) the pharmacist administers an immunization or
288	288	vaccination under a physician's written protocol and meets the
289	289	standards established by the board;] and
290	290	(3) [(7)] the authority of a pharmacist to administer
291	291	an immunization or vaccination [medication] may [not] be delegated
292	292	to a certified pharmacy technician.
293	293	SECTION 13. Sections 554.052(a), (b), (c), and (c-1),
294	294	Occupations Code, are amended to read as follows:
295	295	(a) The board by rule shall require a pharmacist to notify a
296	296	physician who prescribes an immunization or vaccination not later
297	297	than the 14th day [within 24 hours] after the date the pharmacist
298	298	administers the immunization or vaccination.
299	299	(b) The board shall establish minimum education and
300	300	continuing education standards for a pharmacist who orders or
301	301	administers an immunization or vaccination. The standards must
302	302	include federal Centers for Disease Control and Prevention
303	303	training, basic life support training, and hands-on training in
304	304	techniques for administering immunizations and vaccinations.
305	305	(c) Supervision by a physician is adequate if the delegating
306	306	physician:
307	307	(1) is responsible for formulating or approving an
308	308	order or protocol, including the physician's order, standing
309	309	medical order, or standing delegation order, and periodically
310	310	reviews the order or protocol and the services provided to a patient
311	311	under the order or protocol;
312	312	(2) [except as provided by Subsection (c-1),] has
313	313	established a physician-patient relationship with each patient who
314	314	is younger than three [under 14] years of age and referred the
315	315	patient to the pharmacist;
316	316	(3) is geographically located to be easily accessible
317	317	to the pharmacy where an immunization or vaccination is
318	318	administered;
319	319	(4) receives, as appropriate, a periodic status report
320	320	on the patient, including any problem or complication encountered;
321	321	and
322	322	(5) is available through direct telecommunication for
323	323	consultation, assistance, and direction.
324	324	(c-1) A pharmacist may order or administer an immunization
325	325	or [influenza] vaccination to a patient who is at least three [over
326	326	seven] years of age without an established physician-patient
327	327	relationship if the immunization or vaccination is:
328	328	(1) authorized or approved by the United States Food
329	329	and Drug Administration or listed in the routine immunization
330	330	schedule recommended by the federal Advisory Committee on
331	331	Immunization Practices published by the federal Centers for Disease
332	332	Control and Prevention; and
333	333	(2) ordered or administered in accordance with the
334	334	federal Advisory Committee on Immunization Practices
335	335	vaccine-specific recommendations.
336	336	SECTION 14. Section 38.001(b), Education Code, as amended
337	337	by Chapters 43 (H.B. 1098) and 94 (H.B. 1059), Acts of the 80th
338	338	Legislature, Regular Session, 2007, is repealed.
339	339	SECTION 15. (a) The changes in law made by this Act to
340	340	Title 2, Education Code, apply beginning with the 2023-2024 school
341	341	year.
342	342	(b) The changes in law made by this Act to Title 3, Education
343	343	Code, apply beginning with the 2023-2024 academic year.
344	344	SECTION 16. Subchapter H-1, Chapter 21, Labor Code, as
345	345	added by this Act, applies only to an unlawful employment practice
346	346	that occurs on or after the effective date of this Act.
347	347	SECTION 17. If before implementing any provision of this
348	348	Act a state agency determines that a waiver or authorization from a
349	349	federal agency is necessary for implementation of that provision,
350	350	the agency affected by the provision shall request the waiver or
351	351	authorization and may delay implementing that provision until the
352	352	waiver or authorization is granted.
353	353	SECTION 18. This Act takes effect immediately if it
354	354	receives a vote of two-thirds of all the members elected to each
355	355	house, as provided by Section 39, Article III, Texas Constitution.
356	356	If this Act does not receive the vote necessary for immediate
357	357	effect, this Act takes effect September 1, 2023.
358	358	* * * * *